Customs officers. Id at 673. Although the court acknowledged the physical danger in horse racing, the court determined that the safety concerns were much more limited than in Skinner and Von Raab as there was little danger to public spectators. Id at 673. After dismissing all the interests articulated by the Racing Board, the court also concluded that the fact that horse racing was a pervasively regulated activity was not enough to justify random urinalysis testing of licensees.
Defendant argues it could test plaintiff without a warrant, without probable cause and without individualized suspicion pursuant to the analytical framework of Skinner and Von Raab. Rules 8(b) and (c) of the TMOH General Rule Book delineate two situations where blood or urinalysis testing may be performed: 1) when employees are involved in an accident involving a possible claim of injury or property damage, and 2) when employees reporting to work or at any time during the work day are apparently impaired due to alcohol or drugs. While testing following an accident without any showing of individualized suspicion would appear to be similar to the Federal Railway Administration ("FRA") regulations upheld by the Skinner Court, Rule 8(b) is inapplicable to the facts of this case. No accident involving personal injury or property damage precipitated the testing of plaintiff.
Rule 8(c), which permits testing of employees who appear to be impaired by alcohol or drugs, may be applicable to these facts. Pat Jordan of the Diamond Detective Agency allegedly observed plaintiff smoking marijuana and drinking alcohol on TMOH premises and reported this incident to Michael Perry, TMOH's general manager. However, when Jordan subsequently testified before the Illinois Human Rights Commission, he admitted that his report to Perry had not been quite accurate. Jordan testified that he never saw plaintiff "raise what you would think is a marijuana cigarette to his lips and take a puff." IDHR Transcript at 596. When plaintiff returned from the testing at Olympia Fields hospital, a manager ordered plaintiff to park some buses, which he did. It is unlikely that defendant would have ordered plaintiff to operate the buses if any signs of impairment were present. Given the discrepancy in Jordan's testimony, it is uncertain whether plaintiff actually consumed any drugs on the premises. What is certain is that there is no testimony of observed impairment and conflicting testimony as to usage in the record.
Whether or not this rule is applicable to the facts of this case, it is significant that Rule 8(c) does not permit drug testing without some showing of individualized suspicion. "Employees who, when reporting for work or at any time during their workday, are apparently impaired due to alcohol or drugs, may be ordered to submit to a blood test and urinalysis. Rule 8(c). This rule is quite different from the drug testing policies approved in Skinner, Von Raab and Taylor, where no showing of individualized suspicion was required. Because defendant cannot test plaintiff under Rule 8(c) absent some showing of individualized suspicion, the Skinner and Von Raab exception to the probable cause requirement is inapplicable. The pre-Skinner analytical framework should therefore be applied in determining whether plaintiff's drug testing was reasonable under the Fourth Amendment. The court, however, will not readdress whether defendant had probable cause to order plaintiff to submit to drug testing. This issue was previously determined by Judge Kocoras when he denied defendant's motion for summary judgment, concluding there were genuine issues of material fact for trial.
One other provision of defendant's drug testing policy, Rule 8(a), may be applicable to the facts. Rule 8(a) provides that "employees are subject to physical examinations and other medical tests, as deemed necessary to assure fitness to perform their assigned duties." "Medical tests" can be broadly interpreted to include blood and urinalysis testing as no specific tests are designated to limit the interpretation of this rule. Given the ambiguity in the language "as deemed necessary," however, it is unclear whether defendant would have to have individualized suspicion before drug testing plaintiff to assure his fitness to perform his assigned duties.
Assuming no showing of individualized suspicion is required, the Skinner exception is yet inapplicable as Rule 8(a) lacks the specificity or safeguards of the Skinner and Von Raab policies. In Skinner, the Supreme Court explained that the warrant requirement, which protects against random and arbitrary acts of government, was unnecessary because the regulations narrowly and specifically defined the permitted intrusions, which were well known to covered employees. The carefully crafted regulations in Skinner effectively operated as a standing warrant to all covered employees placing them on notice that if they violated the regulations, they would be subject to drug testing. Here, Rule 8(a) does not narrowly or specifically define the circumstances under which such intrusions may be ordered by defendant. Rule 8(a) further authorizes any examination, test or procedure desired by defendant. The rule lacks the specificity and careful tailoring to amount to a standing warrant as in Skinner.
The rule also fails to specify or narrow the employees subject to testing. Testing could only be performed in Von Raab if customs service employees sought a transfer or promotion to positions involving drug interdiction or carrying fire-arms. The Court remanded that portion of the case dealing with the testing of employees with access to classified information because the class of employees was drawn too broadly. In Taylor, the Seventh Circuit excluded testing of correctional employees who had no regular access to prisoners, no reasonable opportunity to smuggle drugs to prisoners and no access to firearms. The Seventh Circuit further remanded the case to the district court for additional findings as the record lacked specificity concerning which prison personnel were exposed to inmates on a regular basis. Here, all TMOH employees are covered by Rule 8(a). The rule makes no attempt to limit application to employees in safety sensitive positions, where any impairment could result in harm to the bus-riding public.
After analyzing defendant's three drug testing provisions, the court determines that the Skinner exception to the probable cause standard is inapplicable to the facts of this case. This case will be tried under pre-Skinner Fourth Amendment analysis. As noted above, the court will not reanalyze whether defendant acted reasonably and with sufficient probable cause in ordering plaintiff to submit to drug testing. This issue was previously determined by Judge Kocoras in denying defendant's prior motion for summary judgment. Defendant's renewed motion for summary judgment is denied.
ORDERED: Defendant's renewed motion for summary judgment is denied.
George W. Lindberg
United States District Judge
Date: OCT 8 1992